court deems necessary to apprise
the jury of the essential nature of the
agreement and the possibility the
agreement may bias the testimony
of the parties who entered into the
agreement. In no instance shall the
amount of the settlement or any
specific contingencies be disclosed
to the jury, except the jury shall be
apprised in general terms of the fi-
nancial interest in the outcome of the
case of any defendant who is a party
to such an agreement.[ 31]
In McCluskey, the Washington
Court of Appeals acknowledged strong
support for such a rule “so that jurors
can consider the relationship in evalu-
ating evidence and the credibility of
witnesses.” 32 Washington should adopt
a similar disclosure rule.
Finally, for such rules to be effective, they must have teeth. In Barton,
the sanction against Mr. Barton and his
counsel was less than five percent of
the judgment amount, and counsel for
the Linvogs did not receive any sanction. In Collings, the trial court denied
City First’s request for a new trial and
did not impose any monetary sanction,
and the Court of Appeals affirmed in a
divided opinion. 33 Given the judicial interests at stake and the difficulty of establishing prejudice based on a record
that has long since closed, there should
be a presumptive rule requiring a new
trial and significant sanctions unless
the party that failed to disclose the
settlement agreement can prove that
there was no prejudice. 34 Otherwise,
as Barton and Collings illustrate, there
may not be sufficient incentive to disclose such agreements.
Undisclosed settlement agreements
are a serious and recurring issue. Other states have appropriately addressed
this issue by prohibiting Mary Carter
agreements or requiring parties to
any agreement that impacts liability
to immediately disclose that agreement to all parties and the court. Any
other result, as Judge Schindler noted
in her dissent in Collings, “is contrary
to Washington law, the right to a fair
trial, the integrity of the adversary
system, candor to the tribunal, and the
administration of justice.” 35 NWL
Rosato Luna &
he focuses on
courts. He was
chair and vice-
chair of the
tion Appellate Practice Committee
and is a district coordinator for the
Ninth Circuit Pro Bono Program. He
can be reached at feldman@pwrlk.
com. Michael P. Lynch is a senior
counsel in the Tort Claims Division
of the Attorney General’s Office,
where he supervises the Torts Appel-
late Program. Mr. Feldman previ-
ously represented City First and Mr.
Lynch represented the Washington
State Department of Transportation in the litigation described in
this article. He can be reached at
1. 202 So. 2d 8 (Fla. Dist. Ct. App. 1967).
2. Romero v. W. Valley Sch. Dist., 123 Wn. App.
385, 389—90 (2004) (“classic ‘Mary Carter
agreement’” includes agreement giving settling defendant the right to recover half of
everything collected by plaintiff in excess of
settling defendant’s contribution).
3. When the Barton case was tried, case law interpreted a covenant not to execute to be a
“release” that negated joint and contribution liability. See Maguire v. Teuber, 120 Wn. App. 393,
396 (2004), overruled by Barton v. State Dep’t of
Transp., 178 Wn.2d 193, 204–08 (2013).
4. Barton v. State Dep’t of Transp., 164 Wn. App.
1024 (table), 2011 WL 5175599, at 1 (2011).
5. 178 Wn.2d at 216.
6. Collings v. City First Mortg. Servs., LLC, 177
Wn. App. 908 (2013).
7. Id. at 945 (Schindler, J., dissenting).
9. Id. at 948.
10. Id. at 944.
11. Id. at 921 (majority opinion), 944-45
(Schindler, J., dissenting).
12. Id. at 945 (Schindler, J., dissenting).
13. Id. at 923 (majority opinion).
14. Id. at 949, 940 (Schindler, J., dissenting).
15. Id. at 940.
16. Giambattista v. Nat’l. Bank of Commerce of
Seattle, 21 Wn. App. 723, 735 n. 5 (1978).
17. McCluskey v. Handorff-Sherman, 68 Wn.
App. 96, 103-04 (1992), aff’d on other
grounds, 125 Wn.2d 1 (1994).
18. Bunting v. State, 87 Wn. App. 647, 654 (1997).
19. Amy Edwards Wood, Note, In re the Exxon